736 S.W.2d 513 | Mo. Ct. App. | 1987
Movant appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. In that motion he sought to vacate his conviction for carrying a concealed weapon in violation of § 571.115, RSMo 1986, for which he was sentenced to six years’ imprisonment as a persistent offender. We affirm.
On April 18, 1981, a Pagedale police officer observed a vehicle being driven erratically. He followed and subsequently stopped the vehicle. As the vehicle was stopping the officer observed movant, who was a passenger in the vehicle, bend forward as if he was putting something under
Movant asserts his trial counsel was ineffective in two respects; choosing to cross-examine a State’s witness, and not objecting at trial to the admission of the weapon movant was charged with concealing. As both these acts were the result of trial strategy, movant’s ineffective assistance of counsel claim must fail. Porter v. State, 682 S.W.2d 16, 19 [3] (Mo.App.1984).
In support of his first claim movant relies upon the unpublished memorandum accompanying our order decision in mov-ant’s direct appeal. State v. Hayman, 671 S.W.2d 336 (Mo.App.1984). In that memorandum opinion we indicated that when only the direct examinations of the State’s witnesses is considered, “the State clearly failed to make a submissible case.” However, we went on to find a submissible case was made when cross-examination of those witnesses was also considered. On direct examination the first witness, testified that he observed movant, make a bending motion while in the vehicle. The officer then demonstrated the motion for the jury. He also testified he told the second officer that movant “made a suspicious move.” On cross-examination movant’s trial attorney read from the police report that movant was observed “bending over and [it] appeared he was placing something under the front seat.”
Even if, as movant contends, the State would have failed to make a submissible case had his trial attorney done nothing, the cross-examination of the witnesses was not ineffective assistance of counsel. We must view the actions of movant’s trial counsel at that time and not with the benefit of hindsight. Porter, 682 S.W.2d at 19. In weighing whether to cross-examine the State’s first witness, movant’s trial counsel could not know the State would also fail to elicit damaging testimony about mov-ant’s actions from the second witness. Faced with the decision, counsel chose to try and impeach the officer’s testimony. The decision to cross-examine the witness is one of trial strategy, that we do not judge with the benefit of hindsight. Neal v. State, 703 S.W.2d 570, 572 [3] (Mo.App. 1986).
Movant’s second claim is his trial counsel was ineffective in not objecting to the admission into evidence of the weapon he was charged with concealing. The weapon was the subject of a motion to suppress. The motion was denied and mov-ant’s trial counsel “thought that the Court had already ruled on that point, by the way it ruled on our motion to suppress.” Mov-ant asserts that the failure to object to the admission of the weapon cannot be justified as trial strategy. Adams v. State, 677 S.W.2d 408, 412 [7] (Mo.App.1984). Mov-ant’s reliance on Adams is misplaced. In Adams the only defense Adams had was that of illegal arrest. Here movant’s trial counsel made a strong attempt at impeaching the State’s witnesses; the case did not rest upon a finding the seizure of the gun was illegal. More importantly, in Adams the court found an objection to the arrest would have had merit. Id. at 413 [10]. To succeed in a Rule 27.26 motion movant must show a reasonable probability that the result would have been different if his trial counsel had acted differently. Id. at 413 [11]; Patterson v. State, 625 S.W.2d 178 (Mo.App.1981). Movant has failed to show that the search of the car, the seizure of the weapon, or his arrest was illegal. State v. Venezia, 515 S.W.2d 492, 493 [1] (Mo.banc 1974); State v. Shearin, 622 S.W.2d 10, 12 [3] (Mo.App.1981).
In reviewing the denial of a Rule 27.26 motion, we reverse only if the 27.26 trial court’s findings of fact and conclusions of law are clearly erroneous. Rule 27.26(j); Laws v. State, 708 S.W.2d 182, 185 [2]